Michael Howell v The Trustee for Townsbed No 2 Trust

[2024] FWC 817

[2024] FWC 817

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Michael Howell
v

The Trustee for Townsbed No 2 Trust

(U2024/1568)

DEPUTY PRESIDENT CLANCY MELBOURNE, 2 APRIL 2024

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.

1. On 14 February 2024, Mr Michael Howell made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

1. The application was incomplete in that Mr Howell did not pay the required application fee, nor did he lodge a complete Form F80 – Application for waiver of the application fee (Form F80). The Form F80 provided was blank.

1. Mr Howell advised in his Form F2 – Unfair Dismissal Application (Form F2) that he commenced employment with The Trustee for Townsbed No 2 Trust (the Respondent) on 22 January 2024 and that his dismissal took effect on 2 February 2024.

1. On 14 February 2024, the Commission contacted Mr Howell on his nominated telephone number. The Commission advised Mr Howell that he did not appear to have served the minimum employment period. Mr Howell used abusive language and then disconnected the call. Later that day the Commission emailed correspondence to Mr Howell’s nominated email address advising him that, on the basis of the information provided in his Form F2, he had not served the minimum employment period. The correspondence directed Mr Howell to file any documents or other evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that, if he did not contact the Commission within 14 days, his application may be dismissed without further notice.

1. As the required documentation was not received, on 29 February 2024 the Commission contacted Mr Howell on his nominated telephone number. Mr Howell confirmed that the dates on his Form F2 were correct and that he understood he did not meet the minimum employment period.  However, Mr Howell further advised that he wanted his case to continue.  The Commission then advised Mr Howell that to continue with the matter, payment of the filing fee would have to be made or a completed F80 provided, as the Form F80 provided at lodgement was incomplete. The Commission also advised that in the event that payment or a completed F80 was not received, his matter may be dismissed. Mr Howell was further advised that all decisions made by the Commission are published.  Mr Howell advised that his matter was private and that he did not wish for a decision to be published to the website, Mr Howell then disconnected the call. The Commission attempted a further telephone call to Mr Howell, however the call was unsuccessful.  A voicemail message was left, along with an email to Mr Howell’s nominated email address, to confirm that if Mr Howell wanted his matter to progress, he would need to make payment or send a completed Form F80. Later that day Mr Howell emailed correspondence to the Commission stating: “You fools just plain don’t listen. You do NOT have my consent to post my details.” The Commission replied with information relating to confidentiality orders to Mr Howell’s nominated email address. 

1. On 1 March 2024 an SMS request for payment was sent to Mr Howell’s nominated email address. On 12 March 2024, the Commission made a final telephone call to Mr Howell’s nominated telephone number. Mr Howell answered the call and immediately disconnected after hearing that the call was from the Commission. The Commission called Mr Howell again, but this call was unsuccessful.  A voicemail message was left confirming that as the matter remained unpaid, a decision dismissing his matter may be made and published to the Commission’s website. To date Mr Howell has not paid the required application fee or completed a Form F80.

1. In relation to an application made pursuant to s.394 of the Act, s.395(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $83.30. The regulations also allow for an application to be made for the fee to be waived.

1. Section 587(1) of the FW Act provides as follows:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

1. In considering all the circumstances, I am satisfied that the relevant application form was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission[1] and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. Furthermore, as Mr Howell has confirmed that he has not completed the required minimum employment period under the FW Act, I am persuaded the application has no reasonable prospects of success. In these circumstances, I am satisfied that it is appropriate to dismiss the purported application under s.587 of the Act. An Order[2] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

[2] PR772894.

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